Breach of injunction
Sameer Patil
(Querist) 21 May 2018
This query is : Resolved
Sir/Madame Temperory injunction has been passed restraining defendent from further construction until partiion of suit property is done by meets and bounds. But defendent not obeying the court orders by continuing the construction, taking advantage of physical location of construction planned and spread on a combined land of suit property and the adecent land). Land adjecent land of suit property belongs to her son's. Defendent is confusing the identification of suite property.
1)Can a court order of police aid u/s 151 from court for police aid can help me. Does police have an authority to identify the suit property refering court orders.
2)What action can police take if the defendent continues the breach of injunction inspite of police warning..?
3)Do police has powers to undergo a spot punchnama of the ongoing activity.
4)Can police record statements of both the party?
5) Can I include pray for assistant from local Talati or TLR office to assist police to identify the suite property as Defendant is confusing and misleading police for I sent if I at of suite property?
6) What are the chances of getting an Exparte order for an Police Aid U/s 151.
7)Does police has powers to detain the Defendant if disobeying the injunction order?
8) What are the evidences granted by court to show breach of injunction for an construction activity?
Anil Satyagraha
(Expert) 21 May 2018
QUICK RESPONSE TO YOUR QUERY
QUESTIONS
1)Can a court order of police aid u/s 151 from court for police aid can help me. Does police have an authority to identify the suit property refering court orders. 2)What action can police take if the defendent continues the breach of injunction inspite of police warning..? 3)Do police has powers to undergo a spot punchnama of the ongoing activity. 4)Can police record statements of both the party? 5) Can I include pray for assistant from local Talati or TLR office to assist police to identify the suite property as Defendant is confusing and misleading police for I sent if I at of suite property? 6) What are the chances of getting an Exparte order for an Police Aid U/s 151. 7)Does police has powers to detain the Defendant if disobeying the injunction order? 8) What are the evidences granted by court to show breach of injunction for an construction activity?
ANSWERS
1. Yes. For this, one may need to file an interim application seeking police protection U/Sec. § 151 CPC. The Police will then be compelled to take tangible action.
2. Police means law enforcement. Be sure that once you have a Court Order directing the Police, then appropriate action in accordance with facts and law will ensue.
3. Yes. Police can do spot panchnama.
4. Yes. Police can record statements of both parties.
5. Not required. Once you get the order, you can always reach out to the Police who would then be required to do the needful.
6. Yes. Ex-party order may be availed in case of urgency and grave circumstances.
7. Yes. Police have powers to detain persons as part of enforcement of Court directions.
8. The list is illustrative not exhaustive. Sample evidence includes, affidavits, photos, videos, witness who may affirm under oath in the Court and so on. The evidence must be materially relevant to the facts that you wish to prove or disprove. Details are available by referring to the Indian Evidence Act.
CASE LAW
1. BHARATHI & ORS. V. THE STATE OF TELANGANA, REP. BY ITS PRINCIPAL SECRETARY & ORS., 2016 (0) SUPREME(AP) 516
2. E. VENKATARAMA NAIDU AND ORS. V. E. RAMACHANDRA NAIDU AND ORS., 2015 (5) ALT 238
3. GAMPALA ANTHAIAH & ORS. V. KASARLA VENKAT REDDY, 2014 (2) ALD 281
ARGUMENTS ADVANCED
1. IN THE MATTER OF A. Bharathi & Ors. v. The State of Telangana, rep. by its Principal Secretary & Ors., 2016 (0) Supreme(AP) 516 , the Hon'ble HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH speaking through Learned M.S. RAMACHANDRA RAO, J., vide Writ Petition No. 30736 of 2016 as Decided On : 14-10-2016, has held —
“(¶ 23) — It is settled law that police aid to enforce the orders of injunction can be granted not only by the Civil Court in exercise of its power under Section 151 C.P.C. but also under Article 226 of Constitution of India by this Court
xxx
(¶ 30) — In Meera Chauhan v. Harsh Bishnoi and another, (2007) 12 SCC 201 the Supreme Court held that when parties violate order of injunction or stay order or act in violation of the said order a Civil Court can, by exercising its inherent power, give appropriate direction to the police authority to render aid to the aggrieved parties for the due and proper implementation of the orders passed in the suit and also order police protection for implementation of such order. It declared:
“(¶ 18) — At the same time, it is also well settled that when parties violate order of injunction or stay order or act in violation of the said order the court can, by exercising its inherent power, put back the parties in the same position as they stood prior to issuance of the injunction order or give appropriate direction to the police authority to render aid to the aggrieved parties for the due and proper implementation of the orders passed in the suit and also order police protection for implementation of such order.
(¶ 19) — It is also well settled that when in the event of utter violation of the injunction order, the party forcibly dispossesses the other, the court can order restoration of possession to the party wronged.”
(Emphasis supplied)
.”
IN THE PRESENT MATTER AT HAND, there is no question that on
__________ (fil up the blanks), an ad interim injunction was issued in favor of the Petitioner and the same is subsisting as of today. That being the position, can the Respondent or any other authority in the State, or police, ignore the finding of the Civil Court and refuse to take steps to see that the order of the Civil Court is implemented wherein the Petitioner in whose favour there is the order of the Civil Court, gets all help to enjoy the substantial rights vested in him by law vide the ad interim injunction. Given the egregious acts of the Respondent in contumaciously disobeying the Court Order, and tendency to continuously and contumaciously contravene the injunction order and also create law and order problem(s). Thus, it is the contention of the Petitioner herein that the Hon’ble Court may issue suo moto appropriate directions to the police authorities to render all possible aid to the aggrieved party for the due and proper implementation of the Court Order(s) in addition to allowing the present Petition For Direction to Grant Police Protection .
2. FURTHER, in the matter of Gampala Anthaiah & Ors. v. Kasarla Venkat Reddy, 2014 (2) ALD 281 , the Hon'ble High Court of Andhra Pradesh speaking through HON'BLE MR. JUSTICE M.S. RAMACHANDRA RAO, J., vide CRP.No. 4687 of 2013 as decided on: 18-12-2013, specifically deliberated at length upon CIVIL PROCEDURE CODE : O.21 R.32, O.39 R.2(a), S.151 BOMBAY POLICE ACT : S.66, CONSTITUTION OF INDIA : Art.226, Art.227, Civil Procedure Code 1908 - Order 39 Rules 1, 2 and 2-A – Breach of order of injunction — Police aid and held —
“
--Order of temporary injunction has to be obeyed by parties to it—Police protection may be granted in writ jurisdiction when Court is approached for protection of rights declared by a decree of civil Court.
xxx
16. However, the Supreme Court in Meera Chauhan v. Harsh Bishnoi ((2007) 12 SCC 201), held that when parties violate order of injunction or stay order or act in violation of the said order the court can, by exercising its inherent power, give appropriate direction to the police authority to render aid to the aggrieved parties for the due and proper implementation of the orders passed in the suit and also order police protection for implementation of such order. It declared:
"14. Before we deal with this question of possession as to who was in actual possession at the relevant point of time it would be appropriate to note that the order for restoration was passed by the trial court on an application under Section 151 of the Code of Civil Procedure. A question may arise whether such an application can be entertained by the court when specific provision under Order 39 of the Code of Civil Procedure has been made for grant of injunction in the form of mandatory order in the exercise of power under the said order. Therefore to decide this aspect of the matter, let us consider the scope of Section 151 of the Code of Civil Procedure. Section 151 reads as under:
"151. Saving of inherent powers of Court.-Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court."
15. On a bare perusal of Section 151 of the Code of Civil Procedure, it cannot be said to be in dispute that Section 151 confers wide powers on the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.
16. The power of Section 151 to pass order of injunction in the form of restoration of possession of the code is not res integra now.
17. In Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal (AIR 1962 SC 527) while dealing with the power of the court to pass orders for the ends of justice or to prevent the abuse of the process of the court, this Court held that the courts have inherent jurisdiction to issue temporary order of injunction in the circumstances which are not covered under the provisions of Order 39 of the Code of Civil Procedure. However, it was held by this Court in the aforesaid decision that the inherent power under Section 151 of the Code of Civil Procedure must be exercised only in exceptional circumstances for which the Code lays down no procedure.
18. At the same time, it is also well settled that when parties violate order of injunction or stay order or act in violation of the said order the court can, by exercising its inherent power, put back the parties in the same position as they stood prior to issuance of the injunction order or give appropriate direction to the police authority to render aid to the aggrieved parties for the due and proper implementation of the orders passed in the suit and also order police protection for implementation of such order.
19. It is also well settled that when in the event of utter violation of the injunction order, the party forcibly dispossesses the other, the court can order restoration of possession to the party wronged."
(emphasis supplied)
xxx
20. So a party, who obtained temporary injunction orders, and is complaining of violation of such orders, may file not only an execution petition under Order XXI Rule 32 CPC or an application under Order XXXIX Rule 2-A of CPC seeking attachment and/or arrest of the violator for Contempt of Court, but also an application seeking police protection under Section 151 CPC from the Civil Court. With great respect to the Division Bench, I do not agree with it's view that if a party were to be allowed to seek police protection under Section 151 CPC to implement an interim injunction order granted in his favour, it would render Order XXXIX Rule 2A and Order XXI Rule 32 otiose.
xxx
23. The High Courts of Bombay and Madras have also taken the view that police assistance may be granted for enforcing or for implementing orders of temporary injunction. In Smt. Nirabai J. Patil v. Narayan D. Patil (AIR 2004 Bombay 225), the Bombay High Court held :
"If Civil Court which has passed the order of temporary injunction takes a view that there is no power vested in the Court to direct the police to grant assistance for enforcing or for implementation of the order of temporary injunction, the very purpose of granting order of temporary injunction may be trust rated in a given case. It is the duty of every police Officer to enforce the law of the land. The duties of police officers are reflected in Section 64 and Section 66 of the Bombay Police Act, 1951. In my opinion, the view taken by the learned Trial Judge that "There is no provision for police and for execution of interim order", is totally incorrect. The learned Judge failed to appreciate that he has a power under Section 151 of the said Code to pass the order directing that police help should be made available provided facts of the case warrant passing of such order.
8. As observed by this Court in the aforesaid judgment, the grant of police aid is an extreme step and therefore order for grant of police help or police assistance cannot be made unless the Court is fully convicted about the existence of grave emergency such as apprehension of violence by the persons against whom the order has been passed. It is very difficult to give exhaustive list of circumstances in which the Court can exercise the said power. However, said power is to be exercised with caution and the said power can be exercised only after the Court is fully convinced of existence of grave situation warranting exercise of said power."
24. In N. Karpagam and others v. P. Deivanaiammal and others (AIR 2003 Madras 219), Justice P. Sathasivam, (as His Lordship then was) also held that the Civil Court can give direction to the Police authorities to render aid to the aggrieved party with regard to implementation of the injunction order passed by the Court. His Lordship held :
It is also relevant to refer the Division Bench decision of this Court reported in 1992 TLNJ 120 (cited supra), wherein after considering the relevant provisions relating to grant of injunction and Section 151 C.P.C. the Bench has concluded that,
"In view of the above position of law, it has to be held that in appropriate cases, directions under Section 151 of the Code can be issued by the Civil Courts to the police authorities to render aid to the aggrieved parties for the due and proper implementation of the order of temporary injunction or a decree for permanent injunction granted by the Civil Court."
FINALLY, Their Lordships have concluded that,
"In appropriate cases, the Civil Court has the power and is indeed under a duty, to issue suitable directions to police officials, as servants of law, to extend their aid and assistance in the execution of decrees and orders of the Civil Courts or implementing an order of injunction passed by it."
25. An order of temporary injunction has to be obeyed by the parties to it and when the plaintiff complains that the defendant is committing breach of the said order and seeks police protection, the Court is under an obligation to accord such protection. Unless this is done, the rule of law will not prevail and judicial orders would not be effectively implemented. Granting of such orders would uphold the dignity and effectiveness of the judiciary.
”
(emphasis supplied)
3. FURTHERMORE, in the matter of E. Venkatarama Naidu and Ors. v. E. Ramachandra Naidu and Ors., 2015 (5) ALT 238 , the Hon'ble HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH speaking through Learned M.S. Ramachandra Rao, J. vide Civil Revision Petition No. 601 of 2015 as Decided On: 12.08.2015, has held —
“
FACTS OF THE CASE: Adjudication of CIVIL PROCEDURE CODE: O.21 R.32, O.39 R.2(a), S.151
(¶ 9) — xxx
In Gampala Anthaiah's case 2014 (2) ALT 661 : 2014 (2) ALD 281 (supra) categorically held that a party, who obtained temporary injunction orders and is complaining of violation of such orders, may file not only any execution petition under Order XXI Rule 32 C.P.C. or application under Order XXXIX Rule 2-A C.P.C., but he can also file an application seeking police aid under Section 151 C.P.C. from the Civil Court.
xxx
(¶ 11) — Since both parties stated that C.M.A.(SR) No. 345 of 2013 filed against the order dated 14.6.2013 in I.A. No. 552 of 2012 is pending before the Senior Civil Judge, Puttur, the said Court is directed to dispose of the same as expeditiously as possible preferably within a period of three (3) months from the date of receipt of a copy of this order.
”
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Anil @ Satyagraha.com
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Ms.Usha Kapoor
(Expert) 22 May 2018
In addition to Anil Satyagrahas contribution I'd like to add that whenever there is a wilful disobedience of injunction order you can get the remedy of exemplary damages and also the person who committed breach of injunction will be liable for civil contempt of court for which punishment is 6 months imprisonment and fine.
